EXHIBIT 10(i)(1)
VOTING AGREEMENT
This Voting Agreement (this "Agreement"), is made and entered into as of
the 14th day of May, 1997, by and among CB Commercial Real Estate Services
Group, Inc., a Delaware corporation ("CBC"), CBC Acquisition Corporation, a
Delaware corporation and wholly-owned subsidiary of CBC ("Acquisition
Corporation"), FS Equity Partners III, L.P. and FS Equity Partners
International, L.P. (collectively, "FS"), AP KMS II, LLC and AP KMS Partners,
L.P. ("Apollo"), Xxxx Holding Company ("KHC"), Xxxxxxx X. Xxxxx ("Xxxxx") and
Xxxxxxx X. Xxxxx, Xx. ("Xxxxx") (FS, Apollo, KHC, Xxxxx and Xxxxx are
collectively referred to herein as the "Xxxx Shareholders").
RECITALS
WHEREAS, the Xxxx Shareholders collectively hold a majority of the issued
and outstanding shares of capital stock of Xxxx Real Estate Services, a Delaware
corporation ("KRES");
WHEREAS, pursuant to that certain Agreement and Plan of Reorganization
dated as of May 14, 1997 (the "Merger Agreement") among CBC, KRES, Acquisition
Corporation and certain other parties thereto, Acquisition Corporation will be
merged with and into KRES (the "Merger") in a transaction in which issued and
outstanding shares of capital stock of KRES (the "KRES Stock") will be exchanged
for Common Stock, $.01 par value, of CBC ("CBC Stock") and warrants exercisable
into CBC Stock on the terms and conditions contained in the Merger Agreement;
WHEREAS, simultaneously herewith each of the Xxxx Shareholders is entering
into a Proxy Agreement (collectively, the "Proxy Agreements") with CBC pursuant
to which each Xxxx Shareholder is granting CBC a proxy as to all shares of KRES
Stock held by it, and this Agreement is to further induce CBC and Acquisition
Corporation to enter into the Merger Agreement;
NOW THEREFORE, in consideration of the terms, conditions and covenants
contained herein and in the Merger Agreement the parties hereto agree as
follows:
1. Approval of Merger. In addition to the rights granted to CBC pursuant
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to the Proxy Agreements, each Xxxx Shareholder agrees to vote its or his shares
of KRES Stock (which shall include all shares of KRES Stock issued upon the
exercise of any rights, options and warrants to acquire shares of KRES Stock)
(a) in favor of the Merger pursuant to the Merger Agreement and any transaction
that is reasonably necessary or appropriate to implement the Merger (i) at any
duly called meeting of the stockholders of KRES during which such a vote is
called or (ii) pursuant to any written consent of stockholders approving the
Merger, whenever presented to such Xxxx Shareholder for execution thereof, (b)
in opposition to any proposal for the amendment of KRES' Certificate of
Incorporation or Bylaws; provided, however, that the Xxxx Shareholders may amend
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KRES' Certificate of Incorporation or Bylaws in connection with amendments which
are not inconsistent with the Merger, the Merger
Agreement and the transactions contemplated thereby with
CBC's prior written consent, which shall not be unreasonably withheld and (c)
other than pursuant to the Merger, the Merger Agreement and the transactions
contemplated thereby, in opposition to any proposal for any merger or other
business combination, consolidation, sale or purchase of any assets,
reorganization, recapitalization, liquidation or winding up of or by KRES or any
of its subsidiaries or affiliates or any offer or sale of any substantial equity
interest in or all or a substantial portion of the stock or assets of, KRES or
any of its subsidiaries or affiliates. Each Xxxx Shareholder further agrees not
to take any action to prevent consummation of the Merger pursuant to the Merger
Agreement. For purposes of this Agreement, an affiliate of KRES shall mean any
person or entity that directly, or indirectly through one or more
intermediaries, controls KRES or any subsidiary of KRES, any person or entity
that is controlled by KRES or any subsidiary of KRES, or any person or entity
that is under common control with KRES or any subsidiary of KRES.
2. Standstill. Prior to the Closing Date (as defined in the Merger
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Agreement), FS:
(A) shall not send any notice of, call, attend (by person, proxy,
telephone or other communications equipment), attend or be represented in
person or by proxy for purposes of constituting a quorum at, vote at or
grant a proxy with respect to or take any action by written consent at,
waive notice, consent to the holding or approve minutes of, any meeting of
shareholders of KRES at which the following business is or is proposed to
be transacted: (i) the election or removal of directors or any change in
the current composition of, the Board of Directors of KRES, (ii) any
amendment to the articles of incorporation, bylaws or other constitutive
documents of KRES relating to the constitution of a quorum of directors or
shareholders necessary for a meeting or the number or voting rights of
shareholders or directors or (iii) the establishment of any committee of
the Board of Directors of KRES to do any of the foregoing;
(B) shall not cause any member of the Board of Directors of KRES or
permit any member of the Board of Directors who is an employee, partner or
affiliate of FS or who FS designated to serve on or nominated or elected to
the Board of Directors of KRES, to send any notice of, call, attend (by
person, proxy, telephone or other communications equipment), attend or be
represented in person or by proxy for purposes of constituting a quorum at,
vote at or grant a proxy with respect or take any action by written consent
at, waive notice, consent to the holding or approve minutes of, any meeting
of the Board of Directors of KRES at which any of the items set forth in
clauses (i), (ii) or (iii) of Section 2(A) are or are proposed to be
transacted; and
(C) shall take all lawful action to maintain the current number,
voting rights and composition of the Board of Directors of KRES (including
voting to adjourn until after the Closing Date any meeting of the
shareholders or Board of Directors of KRES at which any of the items set
forth in clauses (i), (ii) or (iii) of Section 2(A) are or are proposed to
be transacted without FS' prior notice).
The obligation of FS to maintain the current composition of the Board of
Directors of KRES pursuant to this Section 2 shall be subject to the obligation
of FS to exercise voting rights with respect to KRES Stock held by it to remove
a director nominated by Apollo or KHC and to elect a successor nominee
designated by Apollo or KHC to fill such vacancy pursuant to the second
paragraph of Section 6.1 of the Stockholders Agreement (as defined in Section 8
hereof).
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3. Representations, Warranties of Xxxx Shareholders.
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Each Xxxx Shareholder hereby severally represents and warrants to, and
covenants with, CBC and Acquisition Corporation as of the date hereof as
follows:
(A) The signature page hereto sets forth all shares of KRES Stock and
all rights, options and warrants to acquire shares of KRES Stock
("Options"), including all KRES Stock as to which such Xxxx Shareholder has
sole or shared voting or investment power. Such Xxxx Shareholder is the
sole, true, lawful and beneficial owner of the number of shares of KRES
Stock and Options set forth opposite his or its name below with no
restrictions on such Xxxx Shareholder's voting rights pertaining hereto,
except pursuant to this Agreement and the Proxy Agreements. None of such
Xxxx Shareholder's shares of KRES Stock or Options is subject to any voting
trust or other agreement or arrangement with respect to the voting of
shares, except pursuant to this Agreement and the Proxy Agreements and
except as set forth on Exhibit A hereto. As of the Effective Time of the
Merger, none of such Xxxx Shareholder's shares of KRES Stock (which shall
include all shares of KRES Stock issued upon the exercise of any rights,
options and warrants to acquire shares of KRES Stock) or Options will be
subject to any voting trust or other agreement or arrangement with respect
to the voting of shares, except pursuant to this Agreement and the Proxy
Agreements.
(B) Such Xxxx Shareholder has the absolute and unrestricted right,
power, authority and capacity to execute and deliver this Agreement and to
perform its or his obligations under this Agreement. This Agreement
constitutes the legal, valid and binding obligation of such Xxxx
Shareholder, enforceable against such Xxxx Shareholder in accordance with
its terms.
(C) With respect to such Xxxx Shareholder, the consummation of the
transactions contemplated hereby and compliance with the terms and
provisions hereof will not conflict with, or result in any violation of, or
default (with or without notice of lapse of time, or both) under, or give
rise to a right of termination, cancellation or acceleration of any
obligation or to loss of a material benefit under, any provision of
applicable law or regulation, any judgment, order or decree or any
agreement or instrument to which such Xxxx Shareholder is a party or by
which such Xxxx Shareholder is bound.
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4. Covenants Regarding Transfer and Resale of KRES Stock.
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(A) Except as otherwise permitted by the Merger Agreement and the
Proxy Agreements, such Xxxx Shareholder will not, without the prior written
consent of CBC, directly or indirectly, (1) grant any proxies or enter into
any voting trust or other agreement or arrangement with respect to the
voting of any shares of voting stock of KRES beneficially held by such Xxxx
Shareholder (including any shares of KRES Stock issued upon the exercise of
any rights, options and warrants to acquire shares of KRES Stock) or (2)
sell, assign, transfer, exchange, encumber, pledge, or otherwise dispose
of, enter into any contract, option or other arrangement or understanding
with respect to the direct or indirect sale, assignment, transfer,
encumbrance or otherwise dispose of, or in any way reduce such Xxxx
Shareholder's risk of ownership or investment in, or make any offer or
agreement relating to any of the foregoing with respect to, any shares of
KRES Stock (including any shares of KRES Stock issued upon the exercise of
any rights, options and warrants to acquire shares of KRES Stock), or any
securities that may be paid as a dividend or otherwise distributed thereon
or with respect thereto or issued or delivered in exchange or substitution
therefor, or any option, right or other interest with respect to any KRES
Stock during the term of this Agreement. Such Xxxx Shareholder shall not
seek or solicit any such sale, assignment, transfer, encumbrance or other
disposition or any such contract, option or other arrangement or assignment
or understanding and agrees to notify CBC promptly and to provide all
details requested by CBC if such Xxxx Shareholder shall be approached or
solicited, directly or indirectly, by any person with respect to any of the
foregoing.
(B) Such Xxxx Shareholder shall not, directly or indirectly, in his
or its capacity as a stockholder of KRES, (i) take any action to solicit,
initiate or encourage any offer or indication of interest from any person
with respect to any Acquisition Proposal (as hereinafter defined) or (ii)
engage in negotiations with, or disclose any nonpublic information relating
to KRES or its subsidiaries or affiliates, or afford access to the
properties, books or records of KRES or any of its subsidiaries or
affiliates to any person that may be considering making, or has made, an
offer with respect to an Acquisition Proposal and will keep CBC fully
informed of the status of and details of any such offer, indication or
request. Such Xxxx Shareholder will promptly notify CBC after receipt (i)
of any offer or indication that any person is considering making an offer
with respect to an Acquisition Proposal, (ii) any request for nonpublic
information relating to KRES or its subsidiaries or affiliates or (iii) any
request for nonpublic information relating to KRES or its subsidiaries or
affiliates for access to the properties, books or records of KRES or its
subsidiaries or affiliates by any person that may be considering making, or
has made, an offer with respect to an Acquisition Proposal and will keep
CBC fully informed of the status and details of any such offer, indication
or request. "Acquisition Proposal" means any proposal for a merger or
other business combination involving KRES or its subsidiaries or affiliates
or any proposal or offer to acquire in any manner any substantial equity
interest in, or a substantial portion of the assets of, KRES or its
subsidiaries or affiliates, other than any transaction contemplated by the
Merger Agreement provided, however, that the term "Acquisition Proposal"
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shall exclude acquisitions by KRES or its subsidiaries set forth on
Schedule 6.6 of the Merger Agreement.
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5. Governing Law. This Agreement, together with the Proxy Agreements and
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the Merger Agreement, shall be governed in all respects by the laws of the State
of Delaware, as if entered into by and between Delaware residents exclusively
for performance entirely within Delaware.
6. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7. Remedies. The parties hereto acknowledge that CBC will be irreparably
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harmed and that there will be no adequate remedy at law for a violation of any
of the covenants or agreements of a Xxxx Shareholder set forth herein.
Therefore, the parties hereto agree that, in addition to any other remedies
which may be available to CBC upon any such violation, CBC shall have the right
to enforce such covenants and agreements by specific performance, injunctive
relief or by any other means available to CBC at law or in equity.
8. Entire Agreement. This Agreement constitutes the entire understanding
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of the parties hereto with respect to the subject matter hereof, and supersedes
all prior agreements and understandings, written or oral, between the parties
hereto with respect to the subject matter hereof. In the event any provision in
this Agreement is inconsistent with that certain Third Amended and Restated
Stockholders Agreement dated as of January 9, 1997 (the "Stockholders
Agreement"), by and among KRES, FS Apollo, KHC and The Xxxx Company, or with any
other agreement or instrument set forth on Exhibit A hereto, the provisions of
this Agreement shall govern.
9. Successors and Assigns. This Agreement shall inure to the benefit of,
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and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto, but except as otherwise specifically
provided, neither this Agreement nor any of the rights, interests or obligations
of the parties hereto may be assigned by any of the parties without the prior
written consent of the other parties; provided, however, that CBC may assign its
rights hereunder to Acquisition corporation or any other affiliate of CBC.
10. Amendments and Modification. This Agreement may not be modified,
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amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto.
11. Definitions. All capitalized terms used herein shall have the
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meanings set forth in the Merger Agreement, unless otherwise defined herein.
12. Termination. The obligation of each Xxxx Shareholder under this
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Agreement shall terminate on the earlier of (i) the effective date of the Merger
as provided in the Merger Agreement or (ii) termination of the Merger Agreement
for any reason.
13. Severability. If one or more provisions of this Agreement are held to
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be unenforceable, invalid or void by a court of competent jurisdiction, such
provision shall be excluded from this Agreement and the balance of this
Agreement shall be interpreted as if such provision were so excluded and shall
be enforceable in accordance with its terms.
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14. Further Acts. Each party hereto agrees to perform any such acts and
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execute and deliver any such documents that may be reasonably necessary to carry
out the purpose of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Voting Agreement
to be duly executed as of the day and year first above written.
CB COMMERCIAL REAL ESTATE SERVICES GROUP, INC.
By:_______________________________________________
Name:
Title:
FS EQUITY PARTNERS III, L.P.* Number of Number of
Shares Options
By: FS Capital Partners, L.P.
Its: General Partner 4,223,852 -0-
By: FS Holdings, Inc.
Its: General Partner
By:_______________________________
Name:
Title:
* Please list the names of the holders of record of the Shares
beneficially owned by Stockholder:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
FS EQUITY PARTNERS INTERNATIONAL, L.P. * Number of Number of
Shares Options
By: FS&Co. International, L.P.
Its: General Partner 159,778 -0-
By: FS International Holdings Limited
Its: General Partner
By:__________________________________________
Name:
Title:
* Please list the names of the holders of record of the Shares beneficially
owned by Stockholder:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
AP KMS PARTNERS, L.P.* Number of Number of
Shares Options
By: APGP KMS Partners, L.P.
Its: General Partner 824,525 -0-
By: AP KMS Acquisition Corporation
Its: General Partner
By:______________________________________
Name:
Title:
* Please list the names of the holders of record of the Shares beneficially
owned by Stockholder:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
AP KMS II, LLC * Number of Number of
Shares Options
By: Apollo Real Estate Investment Fund
II, L.P. 279,401 -0-
Its: Member
By: Apollo Real Estate Advisors II, L.P.
Its: General Partner
By: Apollo Real Estate Capital Advisors II, Inc.
Its: General Partner
By:__________________________________________
Name:
Title:
* Please list the names of the holders of record of the Shares beneficially
owned by Stockholder:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
XXXXXXX X. XXXXX* Number of Number of
Shares Options
-0- 672,000
_________________________________
Xxxxxxx X. Xxxxx, an individual
* Please list the names of the holders of record of the Shares beneficially
owned by Stockholder:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
XXXX HOLDING COMPANY* Number of Number of
Shares Options
946,037** -0-
By:__________________________________________
Name:
Title:
* Please list the names of the holders of record of the Shares beneficially
owned by Stockholder:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
XXXXXXX X. XXXXX, XX.* Number of Number of
Shares Options
25,000 215,800
____________________________________
Xxxxxxx X. Xxxxx, Xx., an individual
** Subject to options in favor of Xxx Xxxxx and Xxxxxxx X. Xxxxx, Xx. with
respect to 672,000 and 100,800 shares, respectively.
* Please list the names of the holders of record of the Shares beneficially
owned by Stockholder:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
EXHIBIT A
1. Third Amended and Restated Stockholders Agreement, dated as of January 9,
1997, by and among KRES, FS, Apollo, The Xxxx Holding Company and The Xxxx
Company.
2. Pledge Agreement, dated as of November 13, 1995, by and among The Xxxx
Company, The Xxxx Holding Company, Safeco Insurance Company of America and
Xxxxxxx X. Xxxxx, as amended by Release and Amendment to Pledge Agreement,
dated March 29, 1996, and Second Amendment to Pledge Agreement, dated
January 9, 1997.
3. Stock Subscription Agreement, dated as of October 1, 1995, by and between
KMS Holding Corporation and Xxxxxxx X. Xxxxx.
4. Stock Pledge Agreement, dated as of October 1, 1995, by and between KMS
Holding Corporation and Xxxxxxx X. Xxxxx.
5. Nonqualified Performance Stock Option Agreement, dated as of January 12,
1995, by and between KMS Holding Corporation and Xxxxxxx X. Xxxxx, as
amended by Amendment No. 1 thereto, dated as of April 1, 1996.
6. Amended and Restated Option Agreement, dated as of November 23, 1994, by
and among The Xxxx Company, The Xxxx Holding Company, Xxxxxxx X. Xxxxx and
Xxx Xxxxx.
7. Amended and Restated Option Agreement, dated as of November 23, 1994, by
and among The Xxxx Company, The Xxxx Holding Company and Xxx Xxxxx.
